Adhikary v. Blanche

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2026

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUBHAS ADHIKARY, No. 24-5991

Agency No. Petitioner, A216-524-397 v.

MEMORANDUM* TODD BLANCHE, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 5, 2026** Seattle, Washington

Before: HAWKINS, McKEOWN, and CHRISTEN, Circuit Judges.

Subhas Adhikary, a native and citizen of India, seeks review of the Board of Immigration Appeals’ (BIA) dismissal of his claim for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The parties are familiar with the facts, so we do not recount them here. We have jurisdiction

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. pursuant to 8 U.S.C. § 1252, and we grant the petition.

We review for substantial evidence the agency’s factual findings, including credibility determinations. Dong v. Garland, 50 F.4th 1291, 1296 (9th Cir. 2022). Agency credibility determinations require a “healthy measure of deference” because Immigration Judges (IJs) “are in the best position to assess demeanor and other credibility cues that [courts] cannot readily address on review.” Id. (quoting Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir. 2010)). However, implausibility findings based on “speculation and conjecture cannot form the basis of an adverse credibility finding.” Lalayan v. Garland, 4 F.4th 822, 833 (9th Cir. 2021) (citation modified) (quoting Ai Jun Zhi v. Holder, 751 F.3d 1088, 1093 (9th Cir. 2014)). We do not review “those parts of the IJ’s adverse credibility finding that the BIA did not identify as ‘most significant’ and did not otherwise mention.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014).

The BIA affirmed the IJ’s finding of adverse credibility by relying on three instances of implausibility and one purported inconsistency. The agency legally erred by relying on findings of implausibility that are logically at odds, De Leon v. Garland, 51 F.4th 992, 1000 (9th Cir. 2022), and by impermissibly “cherry pick[ing] solely facts favoring an adverse credibility determination while ignoring facts that undermine that result,” see Shrestha, 590 F.3d at 1040.

First, the IJ found that it was implausible that Adhikary would be “singled out” by the Communist Party of India (Marxist) (CPIM) since he had only a “minor role” in the Trinamool Congress Party (TMC). Second, the IJ found it implausible that the violence against Adhikary was not reported on “where even minor instances of trouble between the parties gets reported in the papers.” And third, the IJ found it implausible that the police in West Bengal would detain and torture Adhikary because the state was controlled by the TMC at the time the police detained and beat him.

The IJ’s first implausibility finding ignores the same record evidence that it otherwise relies upon to justify its second implausibility finding. Violence against low-level party members exists, as documented in the news article relied upon by the IJ. For the IJ to conclude that Adhikary would not have been targeted because of his minor role in the TMC was impermissible “cherry pick[ing]” of facts to ignore evidence tending to undermine the adverse credibility determination. Shrestha, 590 F.3d at 1040. Therefore, the IJ’s first implausibility finding, as affirmed by the BIA, is not supported by substantial evidence.

The BIA emphasized that the IJ’s second implausibility finding was “particularly” supported because “the respondent is alleging that he held some rank in the TMC party, with ‘some level of superiority,’” and so it was unlikely that the acts of violence committed against him would not be reported.

The agency therefore put Adhikary in a double-bind: it cast him as a TMC party member with a “minor role” to find that it was implausible that he would be the target of violence, but simultaneously cast him as a member with “some level of superiority” to find it implausible that attacks against him were not reported in the media. Those two findings are inconsistent with one another, and therefore, the BIA’s reliance on those two grounds is not supported by substantial evidence. De Leon, 51 F.4th at 1000 (“[T]he Ninth Circuit has set aside the BIA’s factual findings when the basis for the findings was insufficient or illogical.” (emphasis added)).

Even considered alone, substantial evidence does not support the second finding of implausibility. The BIA agreed with the IJ that because “the articles submitted by the respondent in support of his application detail even minor incidents of [party-affiliated] harm,” it was implausible that the acts of violence Adhikary experienced were not reported. The portion of the IJ decision expressly affirmed by the BIA states, “For example, in one article it’s noted that a member of the respondent’s party’s car was pelted with rocks. So when an event takes place like that against a party member, it’s sufficient to make the news.” That inference rests on “unreasonable assumptions” and is “untethered from the evidence in the record.” Lalayan, 4 F.4th at 837.

To reach that inference, the agency relied on a single Al Jazeera article, entitled “India: 4 killed as political violence erupts in West Bengal state.” The article highlighted evidence of political tension in West Bengal after the “BJP launched an aggressive campaign to win . . . parliamentary seats.” It was not an exhaustive account of political violence in West Bengal. Indeed, the article elsewhere states: “Rival supporters have regularly clashed in the politically volatile state where the BJP won 18 seats . . . .” and “West Bengal has witnessed some of the most violent feuds between rival parties.” The inference drawn by the IJ, and adopted by the BIA, that every act of political violence in Kolkata would be documented in international news is rooted in impermissible speculation and conjecture; it is therefore unsupported by substantial evidence. Ge v. Ashcroft, 367 F.3d 1121, 1125 (9th Cir. 2004).

Finally, substantial evidence does not support the IJ’s third implausibility finding. The IJ found that it was implausible that the police would have detained Adhikary because West Bengal was ruled by the TMC Party. But Adhikary explained to the IJ that his police ward was controlled by CPIM. “The agency has a duty to consider a petitioner’s explanation for a perceived inconsistency,” and “if that explanation is reasonable and plausible, then the agency must provide a specific and cogent reason for rejecting it.” Munyuh v. Garland, 11 F.4th 750, 758 (9th Cir. 2021) (citation modified). Neither the IJ nor the BIA explained why Adhikary’s reasonable and plausible explanation was rejected. Therefore, the “agency’s decision cannot be sustained upon its reasoning.” Id.

Separately, the BIA affirmed the IJ’s finding that “the statements from [Adhikary’s] parents were inconsistent with his testimony” because his parents failed to mention “that he was beaten up by criminals and the police.” That purported inconsistency is instead an omission, because it is “not inconsistent” with Adhikary’s other statements, Iman v. Barr, 972 F.3d 1058, 1068 (9th Cir. 2020); indeed, Adhikary’s description of relevant events has been consistent since he filed his asylum application. “[O]missions are less probative of credibility than inconsistencies created by direct contradictions in evidence and testimony.” Iman, 972 F.3d at 1067 (quoting Lai, 773 F.3d at 971). However, the IJ did not err in treating the omission as significant, and that the omission weighs against Adhikary’s credibility is supported by substantial evidence.

We reject the implausibility findings, which are not supported by substantial evidence. Kalulu v. Bondi, 128 F.4th 1009, 1015 (9th Cir. 2024) (en banc). Doing so “all but gut[s] the BIA’s adverse credibility determination,” and so we remand to the BIA to determine “whether the remaining factors—considered on their own—suffice to support an adverse credibility determination.”1 Kumar v. Garland, 18 F.4th 1148, 1156 (9th Cir. 2021).

PETITION GRANTED.2